Laws vary from state to state, but the implied warranty of good and workmanlike repair of tangible goods or property attaches to a contract if the parties’ agreement does not provide for the quality of the services to be rendered or how such services are to be performed. And some courts have held that this implied warranty may not be waived or disclaimed.
Thus, the implied warranty of good and workmanlike repair or modification to tangible goods or property is a gap filler warranty that implies terms into a contract that fails to describe how the party or service is to perform. Although the parties cannot disclaim this warranty outright, an express warranty in their contract can fill the gaps covered by the implied warranty and supersede it if the express warranty specifically describes the manner, performance, or quality of the services.
The elements of a claim for breach of the implied warranty of good and workmanlike performance of services for the repair or modification of existing tangible goods or property are (1) the defendant sold services to the plaintiff; (2) the services involved the repair or modification of existing tangible goods or property; (3) the defendant failed to perform the services in a good and workmanlike manner; and (4) the defendant’s failure to perform the services in a good and workmanlike manner injured the plaintiff.
The term existing tangible goods refers generally to all moveable personal property other than money. The term repair means to restore by replacing a part or putting together what is torn or broken. The term “modification” broadly includes any change or alteration that introduces new elements into the details of the subject matter, or cancels some of them but leaves the general purpose and effect of the subject matter intact.
And the term good and workmanlike means that quality of work performed by one who has the knowledge, training, or experience necessary for the successful practice of a trade or occupation, and performed in a manner generally considered proficient by those capable of judging such work.